Request By:
Mary B. Welch
805 Indian Mound Drive
Mt. Sterling, Kentucky 40353
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your recent letter raises a question concerning Section 34 of Senate Bill No. 2, an enactment of the 1991 Special Session of the General Assembly, effective February 26, 1991.
Your question and fact situation are as follows:
If someone is employed by a major solid waste company that owns and operates a landfill, can this same person hold the position of an elected and paid city councilman. This person negotiates solid waste contracts between the city of highest class in the county, for which he is an elected and paid official, and the solid waste company for which he works full-time. Would this be in violation of SB 2, Section 34, even though he does not receive extra compensation for signing of contracts? This person holds the title of Manager at the facility [for] which he works. This facility is located in the same county as the city for which he is an elected official.
Section 34 of SB 2, which is to be codified as a new section of KRS Chapter 109, provides in subsection (1) as follows:
No elected or nonelected local government officer or employee or a spouse of such an officer or employee shall, directly or indirectly, receive any benefits or emoluments from, furnish any material or other thing of value to be used in, or be interested in, any contact let by waste management districts, counties, cities, or any combination thereof, for a solid waste management facility.
The statutory provision cited above relative to conflict of interests is more strict than the common law concept, as the statute encompasses not only public officers, but public employees and the spouses of public officers and employees. The statutory provision, however, does not deal specifically with the public officer's position with the company doing business with the public entity, which creates the prohibited interest.
In connection with the common law concepts of conflicts of interest there is a long quotation from the case of Commonwealth ex rel. Vincent v. Withers, 266 Ky. 29, 98 S.W.2d 24, 25 (1936) set forth in OAG 81-204, copy enclosed, at page three. A portion of that quotation reads as follows:
In general, the disqualifying interest must be pecuniary or proprietary by which he stands to gain or lose something. Falling within the principle are contracts with firms in which the member of the municipal body is a partner or a corporation of which he is an officer, or sometimes only a stockholder or employee.
OAG 81-204, p. 3 (emphasis deleted).
Thus, while a city council member could work for a solid waste management firm, that city could not, during the councilman's term of office, legally contract with the waste management firm of which the councilman is an officer or employee. This conclusion is consistent with the recent enactment with which you are concerned, the longstanding provisions of KRS 61.250, KRS 61.260, KRS 61.270 and KRS 61.280 (dealing with conflicts of interest of muncipal officers of various classes of cities), and the common law concepts of conflicts of interest.